Martin v. Martin

• Decision Date: 30 January 1939
• Docket Number: No. 19341.,19341.
• Citation: 125 S.W.2d 943
• Parties: EUGENIA MARTIN, RESPONDENT, v. JOHN F. MARTIN, APPELLANT.
• Court: Missouri Court of Appeals

125 S.W.2d 943

EUGENIA MARTIN, RESPONDENT, v. JOHN F. MARTIN, APPELLANT.

No. 19341.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Pugh & Cook and Frank W. Hayes for appellant.

(1) The trial court erred in adjudging and decreeing in this case that respondent should be given the exclusive care and custody of the minor child, because such judgment and decree is against the evidence, and the weight thereof, and the law, and because there is no circumstance or evidence in the record to support such judgment and decree, and because such judgment and decree is against the best interest and welfare of the minor child in question, and under the record could only have been given as a punishment against appellant. Salkey v. Salkey, 80 S.W. (2d) 735, 740; Barnhart v. Barnhart, 253 S.W. 56; Shine v. Shine, 189 S.W. 403; Shuster v. Shuster, 64 S.W. (2d) 134; Lampe v. Lampe, 28 S.W. (2d) 414; Sabourin v. Sabourin, 213 S.W. 490; McKittrick v. McKittrick, 60 S.W. (2d) 671; Baer v. Baer, 51 S.W. (2d) 873, 879; Hartman v. Hartman, 277 S.W. 950; Sanders v. Sanders, 34 S.W. (2d) 712. (2) The trial court erred in refusing to grant appellant a new trial on the ground of newly-discovered evidence to the effect that and because respondent's, plaintiff's home life, financial position in life and the proposed home and home life and security for the minor child in respondent's home had changed from that pictured in the evidence at the trial and had been destroyed between the time of the trial and the date of the judgment and decree herein. Van Meters v. Beckers, 42 S.W. (2d) 951; Richardson v. City of Hannibal, 50 S.W. (2d) 648; Fischman v. Schultz, 55 S.W. (2d) 313.

Lamm & Barnett and Johnson, Garnett & Quinn for respondent.

(1) There is abundant evidence in the record to support the decree of the trial court in adjudging that respondent be given the exclusive care and custody of the minor child, and the best interests and welfare of the child are so served. Sabourin v. Sabourin, 213 S.W. 490; Ellis v. Johnson, 250 S.W. 1010; In re Grauthoff, 177 S.W. 1112; Hartman v. Hartman, 277 S.W. 950; Keith v. Keith, 95 S.W. (2d) 672. (2) Appellant's motion for a new trial on the ground of newly-discovered evidence, was properly overruled. Caldwell v. Dickinson, 29 Mo. 227; Boggs v. Lynch, 22 Mo. 563; Obert v. Strube, 51 Mo. App. 621; Carlton v. Monroe, 115 S.W. 1057, 135 Mo. App. 172; Cook v. Railroad Company, 56 Mo. 384; Major v. Burns, 114 Mo. 432; Devine v. Wells, 300 Mo. 177, 254 S.W. 65, 67; Lewis v. McClellan, 1 S.W. (2d) 247.

CAMPBELL, C.

Plaintiff seeks in this proceeding to obtain modification of a decree of divorce as respects the custody of Margaret Virginia Martin, a child eleven years of age, born of the marriage which the decree dissolved.

The marriage was on November 24, 1925. The divorce suit was brought to the September term, 1929, of the circuit court of Pettis county, Missouri; decree of divorce in favor of plaintiff was rendered September 30, 1929. The decree awarded the custody of Margaret to the defendant for the first six months and to the mother for the next six months, ordered that when Margaret entered school "and during all school months of each year" she should be in the custody of her mother. The decree further directed Margaret be kept in the home of defendant's mother in Kansas City and not taken out of Missouri without the consent of her mother and the court.

The decree is in harmony with the provisions of a contract made by the father and mother concerning the custody of the child.

The present motion was filed August 21, 1937, the hearing commenced November 5, and the evidence closed November 9. On February 7, 1938, the court modified the decree of September 30, awarded the care and custody of the child, Margaret, to plaintiff, gave defendant right to visit the child "at all reasonable times," denied defendant's motion for modification and allowed plaintiff $500 for compensation for her attorneys. The defendant has appealed.

When the September term, 1929, closed the decree was final and the court could not at a subsequent term change or modify it save upon a showing of "new facts and circumstances arising" thereafter. [Salkey v. Salkey, 80 S.W. (2d) 735.]

The welfare of Margaret is the controlling consideration in determining this appeal. In determining the cause we must consider only the facts and circumstances arising subsequent to the decree for the reason the decree judicially determined what was then for the best interest of the child. The evidence relating to the acts and conduct of plaintiff and defendant prior to the decree must be put aside as of no probative value.

Concerning the matters arising subsequent to the decree plaintiff testified that immediately after the decree Margaret was taken to her paternal Grandmother's home in Kansas City in compliance with the decree; that she (plaintiff) remained in Sedalia until the next January or February, at which time she went to the home of her uncle and aunt in Kansas City and there worked for her uncle until she went to the home of her married sister in Chicago the following October where, within two weeks thereafter, she secured employment at a wage of $19 a week; that she married Edward A. Wade October 4, 1931, and thereafter lived with her husband in neighborhoods where the "upper middle class" lived; that while she was working for her uncle she visited Margaret almost every day and on many occasions took the child to the home of her uncle; that after going to Chicago she frequently called Margaret on long distance telephone and corresponded with defendant's sister and in this way had "definite contact" with Margaret until after Christmas, 1932; that thereafter she obtained numerous addresses where the child was supposed to be but from Christmas, 1932, she was unable to ascertain the whereabouts of Margaret until in December, 1936, at which time Margaret was in California. She testified that her husband in October, 1931, was receiving a wage substantially the same as her wage; that at the time of trial her husband's income was $68 a week, that in consequence thereof she was in position to discontinue her employment and remain at home; that her husband was a journeyman steam fitter, was paid for overtime "and makes as high as $105 a week." In direct examination she testified she was then living in a brick apartment building "located 4425 Troy;" that the lower apartment contained six rooms, the upper apartment "where we reside," has six rooms and an enclosed sleeping porch; that a school was within four blocks of the residence; and across the street there was a playground for children.

On cross-examination she said that she owned no property, had no income; that she had quit her employment in the hope she would get her child; that her husband, Wade, was 30 years of age, had not contracted a prior marriage; that neither of them owned any property except some furniture which was stored. Plaintiff's testimony concerning her conduct while working for her uncle was corroborated by her uncle.

Plaintiff further testified that during all the times she lived in Chicago until in 1935 she had "gall bladder trouble," which was removed by a surgical operation in 1935. She did not state the length of time she was away from her employment on account of the operation.

Dr. Schroth, for the plaintiff, testified that he was acquainted with plaintiff and her husband; had known the latter all his life; that he saw plaintiff professionally about six months after her marriage in Chicago; that plaintiff at that time "was suffering from a complete nervous breakdown and a stomach condition," for which ailment he treated her, and that he continued such treatment until she had an operation; that the nervous condition of plaintiff was, in his opinion, due almost entirely to the absence of her child, and that if the child were returned to her that condition "would be alleviated." This witness, as well as others, testified to the good reputation of plaintiff and her husband. There was other evidence tending to show that plaintiff and her husband were proper persons to have the care of Margaret.

Plaintiff's husband testified that he passed examination and became a journeyman steam fitter April 1, 1937, and that his average earnings from that day was approximately $70 a week; that his "present address" was 4425 Troy Street, Chicago, Illinois; described the apartment in which he and his wife lived in substantially the same way as it was described by his wife. When asked "is your employment steady," he replied "yes, I am in one of the largest shops in the city now;" that he was willing and able to care for his wife and Margaret and desired his wife to have custody of her child; that he owned property which, including furniture, was of the value of about $400 and was in debt in the amount of $150.

Defendant testified that he was then living and had lived in Alma, Michigan, for approximately five years; was engaged in oil and gas production; that he had two children, Margaret, by his...